Justice Department Enters Fray, But Only Congress Can Fix Racist Gerrymandering in Texas

On Monday, the Biden administration jumped into the scrum of lawsuits challenging Republican gerrymandering in Texas, asking a federal judge in El Paso to block new maps that dilute political power for the state’s fast-growing Black, Hispanic, and Asian communities.

“Texas’ 2021 redistricting plans were enacted through a rushed process, with minimal opportunity for public comment, without any expert testimony, and with an overall disregard for the massive minority population growth in Texas over the last decade,” U.S. Associate Attorney General Vanita Gupta said in a press conference on Monday announcing the lawsuit. 

“Texas’ population grew by 4 million people from 2010 to 2020, and 95 percent of that growth came from minority populations,” Gupta added. “Despite this significant increase in the number and proportion of eligible Latino and Black voters in Texas, the newly enacted redistricting plans will not allow minority voters an equal opportunity to elect representatives of their choice.”

In drawing congressional maps that reduced the number of districts where Black and Hispanic residents are the majority of eligible voters, GOP lawmakers also gave white voters effective control of the two new congressional seats that Texas gained as a result of its booming population, despite census data showing that the state’s white population has remained flat. The DOJ lawsuit argues that Texas lawmakers “refused to recognize the state’s growing minority electorate,” pointing to congressional and state House districts in South Texas and the Dallas-Fort Worth metroplex that dilute the political power of Black and Hispanic voters. 

While the maps that Republican lawmakers passed in October already face at least four other lawsuits from civil rights groups and Latino organizations, including the Mexican American Legal Defense and Educational Fund and the Mexican American Legislative Caucus, the DOJ case adds federal weight and resources to an increasingly uphill fight for fair maps in Texas. 

Decade after decade, since Congress passed the Voting Rights Act in 1965, federal courts have ruled that Texas lawmakers discriminated against minority voters with restrictive election laws and racist political maps. A process of federal oversight, called preclearance, kept many discriminatory laws and maps from immediately taking effect in states like Texas with a history of race-based voter suppression, until the Supreme Court ended that federal oversight in 2013. The Texas Legislature’s sprint through the map-drawing process this year is the state’s first round of redistricting in decades without a safety net.

Along with the end of preclearance, legal experts say that other recent court decisions, including the case involving maps that Texas passed a decade ago, have paved the way for more racist gerrymandering and restrictive election laws. 

“This is a bad horror movie that you’ve seen before, but now there’s a plot twist,” said Michael Li, an elections law expert at the Brennan Center for Justice who focuses on redistricting. “Texas has tested the bounds of protections for minority voters since the dawn of the Voting Rights Act, but in recent years the courts have eliminated or weakened a lot of those protections.” 

Li said the fight over redistricting in Texas underscores the need for Congress to pass new federal voting rights legislation, which has stalled in the U.S. Senate. “It’s great to have the DOJ in the fight because everything is such a hard fight, but it’s also much harder than it was the last decade,” Li said. “No one should discount how much harder it is this decade than last decade.” 

The window for action by the courts is quickly shrinking. The DOJ lawsuit was filed just a week ahead of the December 13 filing deadline for candidates running in 2022 primary elections, which are currently scheduled for March 1. Even if plaintiffs obtain a favorable ruling, the state would likely appeal to the ultra-conservative Fifth Circuit Court of Appeals and to a U.S. Supreme Court that’s veered even further right in the years since it nixed preclearance in Texas.

The complaint filed on Monday follows another lawsuit the DOJ filed against Texas last month arguing that a new restrictive voting law risks disenfranchising disabled, elderly, and non-English speaking voters. This summer, Texas House Democrats unsuccessfully tried to stop Republicans from passing the new voting restrictions by denying them a quorum and fleeing to Washington D.C., where they urged Congress and the Biden administration to pass federal voting rights legislation.

U.S. Attorney General Merrick Garland also pressed for action from federal lawmakers in his comments announcing the DOJ lawsuit on Monday. “I want to again urge Congress to restore the Justice Department’s preclearance authority,” Garland said. “Were that preclearance tool still in place, we would likely not be here today announcing this complaint.”